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Case Laws
Showing 141 to 160 of 647 Records
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2005 (9) TMI 557 - ITAT AHMEDABAD
Capital gains ... ... ... ... ..... essee is slump sale and liable to capital gain tax or not, has become academic and need no adjudication. In view of above, we delete the addition of Rs. 2,03,50,292. 10. Ground Nos. 4 to 6 of the appeal read as under 4.The CIT(A) erred in rejecting the contention that the assessee will be entitled to the deduction of Rs. 42,76,197 under section 80HHC. 5.The CIT(A) erred in holding that interest on the margin money kept with the banks in connection with the export obligation will not be business income eligible to 80HHC relief. 6.The CIT(A) erred in holding that the export loss is to be deducted from 90 per cent of the export incentive and on the balance only 80HHC relief will be available. The recent Supreme Court decision in Ipca Laboratory Ltd. v. Dy. CIT 2004 266 ITR 521 will be relevant on the point. 11. At the time of hearing before us, these grounds were not pressed and accordingly, the same are rejected. 12. In the result, the assessee rsquo s appeal is partly allowed.
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2005 (9) TMI 556 - ITAT CHANDIGARH
Cash credits ... ... ... ... ..... g Officer with the direction to give final opportunity to the assessee to discharge the onus in regard to the cash credits appearing in the books of account. It is further clarified that merely filing of affidavits and confirmation is not enough to discharge the onus on the facts and circumstances of this case, especially in the light of the financial capacity of the creditors and the fact of the acknowledgements for returns having been found in possession of the assessee at the time of search. The order of the CIT(A) as well as of the Assessing Officer on this issue is set aside. The Assessing Officer is directed to decide the issue afresh in accordance with law after giving reasonable opportunity to the assessee of being heard. 10. In the result, the appeal of the revenue is allowed for statistical purposes. ------------------------- In favour of revenue. 1.130 Taxman 185. 2. 2003 131 Taxman 391. 3. 1995 82 Taxman 31. 4. 1984 17 Taxman 19. 5. 21 Taxman 238. 6.25 Taxman 80F.
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2005 (9) TMI 555 - CESTAT, CHENNAI
Redemption fine - Quantum of ... ... ... ... ..... is to the tune of Rs. 3.00 lakhs. The quantum of redemption fine determined in the operative part of the impugned order does not seem to reflect the leniency expressed by the Commissioner elsewhere in the order. Ld. Commissioner rsquo s order indicates that he had considered the fact that the subject goods were imported by the actual user-cum-exporter and the fact that the goods were meant for export only. He has not found any bad intent on the part of the importer. In the circumstances, ld. Commissioner ought not to have imposed such a harsh fine. Having regard to the circumstances noticed by the Commissioner himself, we reduce the quantum of fine to Rs. 50,000/-. The penalty of Rs. 10,000/- imposed by the Commissioner on the appellant is reasonable only and the same does not require interference. 3. emsp The impugned order will stand modified to the aforesaid extent only. The appeal is disposed off. (Operative portion of the order was pronounced in open Court on 27-9-2005)
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2005 (9) TMI 554 - ITAT MUMBAI
Income from house property ... ... ... ... ..... he learned CIT(A) has erred in not allowing long-term capital loss of Rs. 4,26,340 to be carried over to subsequent year as submitted by the appellant. 14. The first ground is covered by the decision on revenue rsquo s appeal. But so far as determination of Annual letting value of the vacant flat is concerned, we restore this matter again to the file of the CIT(A) to determine the fair rent in the same manner as laid down in our decision for the assessment year 1998-99. The issue will be decided afresh in the light of enquiries and finding on fair rent as per section 23(1)(a). This is, therefore, set aside to the file of CIT(A). This ground is allowed for statistical purposes. 15. Regarding capital loss incurred on sale of shares, we confirm the decision of CIT(A) inasmuch as the same cannot be allowed to be adjusted as the return was filed late. This ground is, therefore, rejected. 16. In the result, the appeal of the assessee is allowed in part for statistical purpose only.
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2005 (9) TMI 553 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... ected with the manufacture of final product. 4. emsp After considering the submissions, we find that the denial of Modvat credit, if otherwise admissible, is not to be denied to the assessee on the sole ground of declaration having been filed belatedly as held by the Tribunal rsquo s Larger Bench in the case of Kamakhya Steels (P) Ltd. v. C.C.E. - 2000 (121) E.L.T. 247. In view of the decision in Jawahar Mills (supra), denial of credit on item No. 13 on the ground that it was not directly connected with the manufacture of final product is no longer sustainable. This is equally true in respect of all other items in the list. It also appears from the record that, in relation to the capital goods mentioned at SI. No. 10 to 12, the dispute was settled between the assessee and the department under the Kar Vivad Samadhan Scheme. In the result, the impugned order stands sustained and this appeal is dismissed. (Operative portion of the order was pronounced in open Court on 26-9-2005)
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2005 (9) TMI 552 - CESTAT, KOLKATA
Appeal - Limitation - Delay in filing - Condonation of ... ... ... ... ..... sioner (Appeals) for fresh adjudication. 3. emsp Shri Uday Kumar supports the impugned order. 4. emsp I have perused the preamble of the order passed by the Deputy Commissioner of Central Excise, Durgapur IV Division clearly shows the directives that the person aggrieved by the order may appeal to the Commissioner (Appeals) Central Excise, Kolkata within three months from the date of communication of the order. Accordingly, the appellant, on bona fide belief, filed the appeal before the Commissioner (Appeals) within a period of three months from the date of receipt of the order. They were misleaded by the preamble and consequently, they did not file any petition for condonation of delay. In view of the above, I condone the delay for filing the appeal and set aside the impugned order and remand the matter to the Commissioner (Appeals) for fresh adjudication in accordance with law. Appeal is thus allowed by way of remand. SP also gets disposed of. (Pronounced in the open Court)
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2005 (9) TMI 551 - CESTAT, NEW DELHI
Demand - Clandestine removal of goods ... ... ... ... ..... garding which the payments are to be made by the respondents. The respondents have also produced the relevant declarations for sending the goods to the job workers by the principal manufacturer for further processing. The respondents have also produced the job work challans under which the goods were received in the premises and cleared under the same challan. These documents were also seized by the visiting revenue officers. In these circumstances, we have no hesitation to say that respondents were undertaking job work on behalf of other manufacturer and thus no demand can be raised on the basis of cash voucher showing the payment made to the labourers for loading, unloading of goods. In respect of shortages of inputs and final products, we find that Commissioner has given a finding that the shortage was not on actual weighment but on estimate basis. In these circumstances, we find no merit in the present appeal. The same is dismissed. (Dictated and pronounced in open Court)
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2005 (9) TMI 550 - ITAT MUMBAI
Block assessment in search cases ... ... ... ... ..... e CIT(A) has held that these two items of income are not assessable in block assessment because they pertain to period prior to search and are part of regular books of assessment. Thus, the assessability of these items are taken out in limine from the field of block assessment and, therefore, it cannot be said that these two items are assessed in block assessment. Thus, we hold that these two items were not assessed in block assessment and, therefore, they are clearly available for consideration in regular assessment. 10. We, therefore, allow the appeal of the revenue by reversing the finding of the CIT(A) and restore the matter back to the file of CIT(A) to decide the addition on merits as to whether provisions of section 145 have been rightly invoked by the Assessing Officer and if yes, then whether estimation made by the Assessing Officer is proper on the facts and circumstances of the case ? 11. In the result, the appeal of the revenue is allowed for statistical purposes.
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2005 (9) TMI 549 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit ... ... ... ... ..... on of the case. He submits that the Commissioner has not discussed at all why the above circular of the Board is not applicable to the Appellant. The Advocate, further, submits that in facts and circumstances of the case, the extended period is not available to the Revenue as there was no element of fraud or collusion or mis-statement, wilful or otherwise. Everything was disclosed to the Revenue. In view of this, he submits that Tribunal may be pleased to grant Stay for the duty. 2. emsp Heard Shri A. Raha, ld. SDR. He has reiterated the findings of the Commissioner. He submits that the case may be remanded back to the Commissioner to pass the order after considering the Board Circular. 3. emsp Heard both the sides. We find that the appellants have made out a prima facie case. The Board Circular referred to by the appellant, has not at all been discussed by the Commissioner. In view of this we grant Stay to the Appellant for the amount of duty. (Pronounced in the open court.)
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2005 (9) TMI 548 - CESTAT, NEW DELHI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... r to condone the delay on showing the sufficient cause for not filing the appeal within the period of limitation. Rush of work cannot be considered as sufficient cause for not filing the appeal within the period of limitation, therefore, the COD are dismissed. Consequently, the appeals are also dismissed. (Dictated and pronounced in open Court on 20-9-2005)
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2005 (9) TMI 547 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Appeal ... ... ... ... ..... d not retrospectively. He submitted that thus penalty could not have been imposed. We find that no such point had been raised before the Tribunal and no such point is raised even in the Memorandum of Appeal before this Court. In any event the adjudication had taken place in 1998 at which time Section 11AC was on the statute book rdquo . 6. emsp We are afraid the interpretation canvassed by the Revenue does not flow from the Hon rsquo ble Apex Court rsquo s observations. In the present case, the Tribunal is the first Appellate Authority and the judgment does not rule that a new question of law cannot be raised before the Tribunal in the first appeal. In this view of the matter, we are not able to agree with the Revenue rsquo s contention. 7. emsp As the issue on merits is covered in favour of the appellant by our earlier orders, the pre-deposit of duty demand is waived and recovery stayed till the disposal of the appeal. (Dictated and pronounced in the open Court on 19-9-2005)
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2005 (9) TMI 546 - CESTAT, MUMBAI
... ...
... ... ..... should be established that any person who acquires possession or is in any way concerned in transporting, removing, depositing or keeping or purchasing any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or the Rules, he may be liable to, penalty not exceeding three times the value of goods or Rs. 5,000/- whichever is higher. In the instant case, we do not find that there is a finding given by the adjudicating authority that the offending goods are excisable or not. In the second place the finding has not been given that the alleged purchaser had known or has reason to believe that the goods were liable for confiscation under the Act. Without the compliance of these parameters as mentioned in Rule 209A we cannot state that there has been a violation of the said rule. 5. emsp As such, we do not find any justifiable reason for imposing penalty upon the appellants and set aside the same. The appeal is allowed. (Dictated in Court)
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2005 (9) TMI 545 - ITAT DELHI
Business income ... ... ... ... ..... eduction in the year under appeal. We find that this contention of the assessee which was even rendered before the Assessing Officer could not be controverted by the revenue. In our considered opinion, it is not open for the revenue to allow deductions in respect of the two films on one basis and other on other basis. Only one system of claiming of deduction has to be adopted for all the transactions. Thus, even if the Assessing Officer rsquo s view is accepted then the correct income for which assessee ought to have been assessed will come to a figure lower than at which he was assessed in the original assessment. In view of the above fact, in our considered opinion, the reassessment proceedings initiated in the instant case was not justified and should have been dropped by the Assessing Officer. For the reasons given in the foregoing, we uphold the order of the CIT(A) and reject the grounds of appeal of the revenue. 13. In the result, the appeal of the revenue is dismissed.
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2005 (9) TMI 544 - CESTAT, MUMBAI
Cenvat/Modvat credit - Inputs - Natural justice - Show cause notice ... ... ... ... ..... as made on RT-12 returns which had become final and has not been challenged cannot be upheld. Notice to issue recovery of credit is sine qua non to non-issue of such a notice would be violation of principles of natural justice. The issue of notice and providing that such a notice should have material relied upon therein so that the assessees can know the reasons why the credits are proposed to be denied are an essential requirement. Issue of notice cannot be dispensed. The reliance on the case of 1988 (38) E.L.T. 573 (S.C.) - Kosan Metal Products Ltd and 1987 (28) E.L.T. 53 (S.C.) - Gokak Patel Volkart Ltd. is well placed by the appellants. The reliance and findings of the Commissioner (Appeals) contrary to the settled position therefore cannot be upheld. 5. emsp In this view of the matter no material is found to uphold the present order of Commissioner (Appeals), the same is required to be set aside. 6. emsp Consequently appeal is allowed. (Pronounced in Court on 11-10-2005)
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2005 (9) TMI 543 - ITAT DELHI
Cash credits - Income from undisclosed sources u/s 68 - benefit of exemption u/s 54F - HELD THAT:- After having perused the entire material that is available on record, there is no averment, much less any evidence, with the revenue in this regard. In our view, while there may be enough grounds with the Assessing Officer to carry out the impugned verification exercise to test the efficacy of the transactions resulting in long-term material gains in the hands of the assessee but there is no cogent material or evidence to indicate that the impugned sale proceeds reflected unaccounted income of the assessee. Therefore, we hereby affirm the conclusion drawn by the CIT(A) in this regard. Having sustained the long-term capital gain declared by the assessee, the exemption thereafter claimed by him under section 54F with regard to the investment made for acquisition of the house property is also allowable because the only ground to deny the said exemption was the treatment of the capital gain proceeds as unexplained, which we have already concluded otherwise. Thus, we affirm the decision of the CIT(A) and the revenue fails in this ground.
We find that the first appellate authority has failed to address the issue in its proper perspective. The only reason considered by the CIT(A) in deleting the addition is to the effect that the addition as made by the Assessing Officer was on the basis that the sale proceeds of the shares sold were found to be unexplained. While the said ground may not be enough to justify the addition, yet the CIT(A) failed to appreciate that the onus still remained on the assessee to explain the sources for making the impugned investment towards acquisition of the property.
We do not find any finding by the CIT(A) with regard to the explanation offered by the assessee on this issue. Although we notice that the assessee, by way of his written submissions before the CIT(A), a copy of which is placed at pages 1-5 of the paper book before us, had explained that the assessee withdrew a sum of Rs. 1,40,000 on 6-7-1996 from its bank account for utilization in the purchase of stamp duty, etc., but this aspect has not been considered by the CIT(A) and nor by the Assessing Officer. Certainly, the same requires verification. Therefore, for this limited purpose, we set aside the order of the CIT(A) and restore the issue to the Assessing Officer who shall consider and examine the plea of the assessee in this regard. If the Assessing Officer is satisfied that over and above the sale proceeds of the shares, the assessee had sufficient funds to meet the balance investment in the property, no addition shall be required to be made. If on the contrary, the Assessing Officer is not so satisfied, he shall be at liberty to pass such order as is in accordance with law. Of course, the Assessing Officer shall carry out the verification exercise after allowing the assessee due opportunity of being heard in the matter.
In the result, the appeal of the revenue is partly allowed for statistical purposes.
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2005 (9) TMI 542 - CESTAT, CHENNAI
Confiscation and penalty - Redemption fine ... ... ... ... ..... the penalty of Rs. 45,262/- was also paid. They incurred a demurrage of Rs. 1,95,392/-. When they cleared the goods they found that 95 of the goods got completely deteriorated. Ultimately, the goods had to be destroyed. In these circumstances, they requested for reduction in fine and penalty. 4. emsp We have gone through the records of the case carefully. We find that the appellants had a bona fide belief that the goods would fall under CSH 3805.40. Hence he did not apply for licence. In any case, when the goods were released, the appellants found that 95 of the goods were deteriorated. In these circumstances, we feel that it would in the fitness of things to reduce the fine to Rs. 1 lakh only. Since the dispute is on account of interpretation of the Customs Tariff, there is no mala fide and imposition of penalty is not warranted. Hence we set aside the penalty. We allow the appeal in the above manner. (Operative portion of the order was pronounced in open Court on 16-9-2005)
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2005 (9) TMI 541 - ITAT DELHI
Penalty - For failure to deduct tax at source ... ... ... ... ..... use, which is available in view of the provisions contained in section 273B of the Income-tax Act. This plea has been fully substantiated by the assessee and the explanation of the assessee deserved to have been accepted. The departmental authorities were, therefore, not justified in rejecting such plea, in imposing the penalty under section 271C. It may be observed that the imposition of penalty is not mandatory and in the cases, like the present case, there is no justification for imposing penalty particularly when the entire tax had been deposited and interest has also been paid by the assessee for delay in deducting the tax. 33. Thus, on consideration of totality of the circumstances and the relevant material on record, we set aside the finding of learned CIT(A) and cancel the penalty imposed by the Assessing Officer under section 271C and so sustained by the learned CIT(A). Consequently, the penalty stands cancelled. 34. In the result, assessee rsquo s appeal is allowed.
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2005 (9) TMI 540 - CESTAT, MUMBAI
Rectification of mistake ... ... ... ... ..... A/270-272/WZB/05/C-III, dated 14-2-2005 2005 (184) E.L.T. 216 (T) and the same requires correction. 2. emsp The following correction, therefore, be effected - ldquo classification under Heading 5404.10 should be substituted with 5402.10 rdquo . 3. emsp Application allowed in the above terms. (Pronounced in Court)
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2005 (9) TMI 539 - CESTAT, MUMBAI
Cenvat/Modvat - Notional credit - Availment of ... ... ... ... ..... edit. 9. emsp Ld. Advocate has conceded to reverse back the higher notional credit availed in respect of M.S. Tank manufactured by M/s. Megha Power Equipments and has not contested the finding of the Commissioner that consumption of 17 units of power was not sufficient to manufacture the said tanks. As such, we disallow the higher notional credit availed on the tank received from M/s. Megha Power Equipments, but agree with the appellant rsquo s contention that actual duty paid by the said job workers would be available as credit. 10. emsp Inasmuch as we have held that higher notional credit was available to M/s. Apex Electricals Pvt. Ltd. and M/s. Sarjak Electricals Pvt. Ltd. (except a portion in respect of M.S. tank, which is to be quantified by the original authority), there is no justification of imposition of penalty upon all the appellants, the same are accordingly set aside. All the appeals are disposed off in above manner. (Pronounced in Court on hellip hellip hellip )
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2005 (9) TMI 538 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ) does not permit credit after six months and rely upon Kusum Ingots and Alloys Ltd. - 2000 (120) E.L.T. 214 and Osram Surya 1998 (29) RLT 684 and other decision. (ii) The facts herein are different from the facts relied upon by the ld. CCE (A). 3. emsp When the matter was called, none appeared for the respondents. The findings of the CCE (A) on the counting of the period of six months from the date of receipt of the inputs and not issue of the invoices is to be upheld in this case of returned goods from the Railways, who were to use them as component for Diesel Engine as capital goods, which findings is not challenged. The document date of return of the goods therefore is important and is not under challenge. The original invoices issued by the appellants are only evidences of the duty paid nature of the goods and not date of return invoice/challans etc. issued by the Railways. There is no violation of Rule 57G(2) established. Appeal therefore rejected. (Pronounced in Court)
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